Opinion
NOT TO BE PUBLISHED
Alameda County Super. Ct. No. C146133
Sepulveda, J.
This court previously reversed defendant’s murder conviction and remanded to the trial court to conduct a new hearing pursuant to People v. Wheeler (1978) 22 Cal.3d 258 (Wheeler) on whether defendant had established purposeful discrimination in jury selection. (People v. Ivey (Feb. 23, 2006, A109161 [nonpub. opn.] (Ivey I).) Following remand, the trial court again concluded that defendant had not made a prima facie case of racial discrimination. On appeal, defendant claims that he was deprived of a meaningful hearing on remand, and that there is an inadequate record for meaningful review of the trial court’s ruling, because the Alameda County Clerk did not retain the juror questionnaires of all prospective jurors. We disagree and affirm.
I. Factual and Procedural Background
The evidence upon which defendant was convicted was set forth at length in Ivey I and need not be repeated here. We instead focus on voir dire. Prospective jurors were given a 16-page juror questionnaire before voir dire began. During voir dire, the prosecutor peremptorily challenged two African-American panel members.
On October 28, 2008, this court granted defendant’s request to take judicial notice of the record and docket in Ivey I. Defendant was convicted of one count of murder (Pen. Code, § 187, subd. (a)) and one count of possession of a firearm by a felon (Pen. Code, § 12021, subd. (a)(1)); the jury also found true use of a firearm enhancements (Pen. Code, §§ 12022.5, subd. (a)(1), 12022.53, subds. (b), (c), & (d)) and a special circumstance allegation (Pen. Code, § 190.2, subd. (a)(17)(A) [murder during the commission or attempted commission of robbery]). Defendant was sentenced to life without the possibility of parole on the murder charge; the sentences on the remaining count and enhancement were ordered to run concurrently.
Prospective juror W.H.
One of the first 12 prospective jurors called to the box was W.H., an African-American man. The prosecutor asked him questions about answers he had provided in his juror questionnaire. W.H. stated that his brother had been accused of rape and spent about four years in prison. He thought that the crime had taken place in Alameda County, but he did not know who prosecuted the case, and he did not attend his brother’s trial. The same brother also had been shot, but not killed. No one had been arrested for the shooting, and W.H. said that “[t]hat was his fault. He knew what [sic, presumably, who] it was, but he never did anything about it.” The prosecutor asked W.H. what he meant when he simply wrote “ ‘bad’ ” in response to a question about how he felt about the criminal justice system. W.H. responded, “I seen a lot of cases where innocent people have gone to prison and served time, 10 years, 15 years and found out later they weren’t guilty of that crime.” Defendant’s attorney did not question W.H.
Respondent refers to this juror as “Robert H[.]”; however, it is clear that the reference is to W.H.
The prosecutor exercised a peremptory challenge as to W.H., and he was excused without comment from defendant’s attorney. A jury was selected that included one African-American (identified in the record only as Juror No. 3), and voir dire continued to select alternate jurors.
Prospective alternate juror L.R.
Prospective alternate juror L.R., an African-American woman, stated that her daughter was a lawyer who practiced employment, immigration, and personal injury law. When asked by the prosecutor whether L.R. discussed criminal law issues with her daughter, L.R. stated that they watched Law and Order together. L.R. said she sometimes discussed whether the show was realistic with her daughter, stating, “I’m like how can the police do this or can they do that?” L.R. referred to her daughter “as my expert opinion so I say they can do that, she says yes, they can. Whatever. We also watch ‘NYPD Blue.’ They [the police] are a little more heavy-handed.” L.R. said she understood she would not be permitted to discuss the trial with her daughter.
L.R. stated in her juror questionnaire that she had a godchild who lived with her who had been arrested. According to L.R., the godchild had been arrested about six years earlier in Alameda County for fencing stolen property. When asked how L.R. felt her godchild had been treated in the case, L.R. responded, “Well, it was in Pleasanton, she went to Santa Rita, so I felt it was fairly harsh, but, you know, the charges were dropped.”
The prosecutor asked L.R. about her experience with crime. L.R. lived in East Oakland, and she had been burglarized “[m]any times.” She called the police “about 80 percent of the times.” Even though she “sort of knew who it was” who burglarized her, she did not talk to the person or try to take care of the situation with the person. L.R. stated, “I live next door to some public housing and they would watch us to see when we left and then they would break in. Took a computer or whatever.” When asked how she felt the criminal justice system worked, L.R. responded, “Well, I feel it works fairly well if you have money and you have an important attorney.” As for people who do not have money, she stated, “Well, then I figure that sometimes they phone it in and there’s [a] lot of plea bargaining going on that maybe shouldn’t.” She said she had not seen anything during jury selection that would cause her to feel that what was going on was unfair. The prosecutor peremptorily challenged L.R.
Defendant’s Wheeler motion
After the peremptory challenge of L.R., defendant made a motion pursuant to Wheeler, supra, 22 Cal.3d 258. Defendant’s attorney stated, “I feel that Ms. R[.] was—first of all, she is an African-American female. She was excused from jury service by the District Attorney and I don’t think that there’s a nonrace reason for the exercise of the peremptory.” The prosecutor then asked whether the trial court had found that defendant had made a prima facie case. The trial court stated, “Well, I think—I’m not sure I have yet. That’s one challenge—I note that [the prosecutor] did exercise a challenge on one other African-American at the outset and that was [W.H.]” The trial court and defendant’s attorney noted that two other African-Americans had made it to the jury box; one was excused for a medical condition, and the other was excused because of “employment issues.” The following exchange then took place:
“[Defendant’s attorney]: But in terms of the potential jurors that we actually questioned [the prosecutor] exercised a peremptory challenge of Mr. W[.] H[.] who was seated in [seat] number 2 and then Ms. R[.] There were no other challenges
“The Court: We have a seated juror who’s African-American, Jn. 03XXXX.
“[Defendant’s attorney]: Number 3.
“The Court: Jn. 03XXXX, Juror Number 3, is African-American.
“[Defendant’s attorney]: I agree with that.
“The Court: No, I do not find a prima facie case. Thank you.”
Ivey I
In Ivey I, defendant argued that the trial court applied the wrong legal standard when it ruled on his Wheeler motion. This court assumed that the trial court had applied the standard articulated by the California Supreme Court, that the moving party “must show that it is more likely than not the other party’s peremptory challenges, if unexplained, were based on impermissible group bias.” (People v. Johnson (2003) 30 Cal.4th 1302, 1306.) We assumed that error resulted, because following trial the United States Supreme Court determined that the correct standard for the prima facie showing was that the moving party must produce “evidence sufficient to permit the trial judge to draw an inference that discrimination has occurred.” (Johnson v. California (2005) 545 U.S. 162, 170.) Citing the factors set forth in People v. Allen (2004) 115 Cal.App.4th 542, 553-554, footnote 10, this court concluded that “[t]he proper remedy in this case is a limited remand to permit the prosecutor to articulate her reasons for excusing the jurors in question and to give the trial court the opportunity to assess the validity of those reasons.” This court noted that although the jury questionnaires apparently had been destroyed, there were complete transcripts of the voir dire process.
A petition for review to the California Supreme Court was filed March 28, 2006 (S142165), arguing that this court erred when it concluded that an error in instructing the jury was harmless beyond a reasonable doubt. Defendant did not raise the Wheeler issue in his petition. The Supreme Court denied review on June 14, 2006.
In Ivey I, this court granted defendant’s request to augment the record with copies of juror questionnaires of all prospective jurors. The clerk of the Alameda County Superior Court responded that the court did not retain the juror questionnaires.
Proceedings following remand
At a hearing following remand, the prosecutor said that she had not stated her race-neutral reasons for excusing the jurors in question because she thought “they were so obvious I didn’t feel the need to make a record.” In preparing for the hearing on remand, she reviewed a blank juror questionnaire, post-it notes that she had saved with her case files, and the relevant portions of the voir dire transcript. She stated that this case was the last one she had tried on her trial staff assignment, so the case was “still fairly fresh” in her mind.
As for why she challenged W.H., the prosecutor noted that W.H.’s brother had been imprisoned for rape after being prosecuted by the Alameda County District Attorney’s Office, and she was concerned that W.H. had the potential to be biased against the prosecution for that reason. The prosecutor also was concerned about W.H.’s statement that he felt the criminal justice system was “ ‘bad’ ” and caused a lot of innocent people to serve several years in prison. According to the prosecutor: “His response indicated to me at the least extreme skepticism or cynicism of criminal trials, of the prosecution and law enforcement. So at the very least, his negative feelings toward the criminal justice system was enough to question his ability to be a fair and impartial juror to the prosecution.”
As to prospective alternate juror L.R., the prosecutor stated several reasons she felt L.R. would not be fair to the prosecution: (1) she showed skepticism of the criminal justice system, as demonstrated by her statement in her juror questionnaire that she thought the system worked well “if you have money and you have an important attorney,” (2) she had been burglarized many times but called the police only 80 percent of the time even though she was not scared, which indicated she was not interested in holding people accountable for their criminal actions even though she knew who was responsible, (3) she appeared desensitized to violence, based on the fact she lived in East Oakland and had been burglarized 15 times, and (4) she lived with a godchild who she felt had been treated poorly at Santa Rita Jail, the same facility where defendant was housed during trial, which showed a negative view of law enforcement. The trial court noted that it personally recalled both of the challenges, and that it had noted that one of L.R.’s family members was a “very well-known councilman.” (The prosecutor later clarified that at the time she exercised the peremptory challenge, she had no idea about L.R.’s political connections, and the connections would not have affected her decision to exercise the peremptory.)
Because defendant had not received a copy of the transcript of jury selection before the hearing, his attorney requested additional time. Defendant’s attorney also objected generally to the proceeding, stating, “I don’t have total recall. I am not that great of an attorney that some may think in money or what have you, but I submit the prosecution is human, as well. And to come back to this court two years later, or as the case may be, in other cases five years or seven years, there is no cutoff line of this process that we’re undergoing today.”
Defendant also made a motion for a new trial, which the trial court denied.
At a subsequent hearing, defendant’s attorney addressed the prosecutor’s stated reasons for peremptorily challenging W.H. and L.R. As for W.H., defendant’s attorney noted that the prosecutor did not challenge W.H. for cause, and W.H. stated that he could be “fair” even though his brother had been prosecuted for rape by the Alameda County District Attorney’s Office.
As for L.R., defendant’s counsel stated that she had appeared to be an “exceptionally well-qualified potential juror.” The fact that she did not call police when she was victimized by crime “in no way indicates that she’s desensitized to the criminal justice system,” according to defendant’s attorney. Counsel likewise did not “see her in any way saying that she ha[d] a negative opinion” of the criminal justice system. The fact that L.R. believed that money might lead to a different result in some cases was, according to counsel, “an opinion held by many people, but that doesn’t mean that you have a negative opinion of the criminal justice system.” Counsel stated that “going to the demographics, Ms. R[.], as the record indicated last time, you recognized her as being the wife of a well-known prominent African-American politician or ex-politician having sat on the City Council in the City of Oakland. If she is not qualified to be a juror, college educated, working, she watches ‘CSI’ and all that stuff. She is a normal person. She is not qualified because she’s Black. There was nothing, nothing in her answers that said that she could not be fair and impartial to both sides.” The prosecutor responded that she recalled another reason why she challenge L.R.: she showed skepticism or distrust of police officers when she said she questioned whether they could do the things that are portrayed on television.
Defendant’s attorney again objected that the process on remand was “simply unfair to the defense,” because he was expected to “relive the moment” when he made his original Wheeler challenge. He also objected that juror questionnaires had been destroyed.
The trial court stated that the court retains questionnaires for all seated jurors, and that in the future the court would retain questionnaires for all jurors who are peremptorily excused as well. This court previously has observed that it is a good practice “for county clerks to retain all of the juror questionnaires whenever a Batson-Wheeler motion has been made, or at least the questionnaires of prospective jurors who were called to the box and questioned.” (People v. Jordan (2006) 146 Cal.App.4th 232, 252, fn. 15, original italics.)
The trial court again denied defendant’s Wheeler motion, stating: “I have not only reviewed your explanations, [prosecutor], but I’ve also reviewed the transcripts of the voir dire, and I do find that your reasons are valid and not race-related. I do not believe that you [defendant] have made a prima facie case—or a showing that there’s evidence sufficient to have me draw an inference that these challenges were based upon racial discrimination. Therefore, my original ruling on the challenges is sustained and reaffirmed.”
Defendant did not timely appeal, and this court first denied defendant permission to file a late notice of appeal. This court later granted defendant’s motion for reconsideration and directed the trial court to file defendant’s notice of appeal.
II. Discussion
Both the federal and state Constitutions prohibit the use of peremptory challenges to exclude prospective jurors based on their race. (Batson v. Kentucky (1986) 476 U.S. 79, 97 (Batson); Wheeler, supra, 22 Cal.3d at pp. 276-277.) “The Batson three-step inquiry is well established. First, the trial court must determine whether the defendant has made a prima facie showing that the prosecutor exercised a peremptory challenge based on race. Second, if the showing is made, the burden shifts to the prosecutor to demonstrate that the challenges were exercised for a race-neutral reason. Third, the court determines whether the defendant has proven purposeful discrimination. The ultimate burden of persuasion regarding racial motivation rests with, and never shirts from, the opponent of the strike. [Citation.] The three-step procedure also applies to state constitutional claims. [Citations.]” (People v. Lenix (2008) 44 Cal.4th 602, 612-613.) Where the trial court states that it does not believe that a prima facie case has been made and invites the prosecution to justify its challenges for the record on appeal, “we sustain the trial court if, upon independently reviewing the record, we conclude the totality of the relevant facts does not give rise to an inference of discriminatory purpose.” (People v. Howard (2008) 42 Cal.4th 1000, 1018.)
Respondent argues, and we agree, that the record does not give rise to an inference of discriminatory purpose, and the record thus supports the trial court’s conclusion that defendant did not make a prima facie showing of discrimination. Defendant does not directly address this issue, however, instead arguing that the absence of completed juror questionnaires precluded a meaningful Batson-Wheeler hearing on remand, and likewise precludes meaningful appellate review of the trial court’s ruling.
Although defendant briefly compares answers given by seated jurors with those given by prospective jurors who were peremptorily challenged, he makes clear that “he is not trying to demonstrate on this record that the prosecutor’s stated reasons were pretextual,” because the record is too “incomplete and insufficient” to enable him to do so. (Original italics.)
As defendant acknowledges, our Supreme Court and this court (People v. Jordan, supra, 146 Cal.App.4th at pp. 247, 252) have held that the absence of juror questionnaires in the record on appeal does not deprive a defendant of his right to an appellate record that is adequate to permit meaningful review, where, as here, “material from the now lost items survives in the reporter’s and clerk’s transcripts through quotation and paraphrase.” (People v. Alvarez (1996) 14 Cal.4th 155, 196, fn. 8; see also e.g., People v. Haley (2004) 34 Cal.4th 283, 305; People v. Ayala (2000) 24 Cal.4th 243, 270; People v. Heard (2003) 31 Cal.4th 946, 970.) Defendant argues that we may no longer rely on those cases to determine whether there is an adequate record in light of People v. Lenix, supra, 44 Cal.4th 602, which held that evidence of comparative juror analysis must be considered for the first time on appeal if relied on by the defendant, and the record is adequate to permit the urged comparisons. (Id. at p. 622.) Where a prosecutor offers an explanation for exercising a peremptory challenge to an African-American prospective juror but does not challenge similarly situated White prospective jurors, comparative juror analysis is relevant circumstantial evidence of intentional discrimination, because it suggests that the prosecutor’s proffered reason for challenging the African-American prospective juror is pretextual. (Snyder v. Louisiana (2008) 552 U.S. __, 128 S.Ct. 1203, 1211-1212; People v. Lenix, supra, 44 Cal.4th at p. 622; People v. Fiu (2008) 165 Cal.App.4th 360, 395-396.) Because defendant is now entitled to juror analysis even absent his request for such review at the time of his Wheeler motion, defendant argues, the absence of juror questionnaires deprives him of the comparative juror analysis to which he is entitled.
What defendant’s argument ignores is that a reviewing court need not engage in comparative juror analysis where, as here, the trial court has denied defendant’s Wheeler motion after concluding that defendant failed to make out a prima facie case. (People v. Hawthorne (2009) 46 Cal.4th 67, 80, fn. 3 [declining to subject prosecutor’s use of strikes to comparative juror analysis in a “ ‘first-stage’ Wheeler/Batson case”]; People v. Howard, supra, 42 Cal.4th at pp. 1019-1020.) “ ‘Whatever use comparative juror analysis might have in a third-stage case for determining whether a prosecutor’s proffered justifications for his strikes are pretextual, it has little or no use where the analysis does not hinge on the prosecution’s actual proffered rationales,’ ” and we may therefore decline to engage in a comparative analysis here. (Howard at p. 1020.) Because we need not engage in comparative juror analysis here, the absence of juror questionnaires (which would be only one piece of evidence relevant to a comparative analysis in any event) does not prejudice defendant. The absence of juror questionnaires likewise did not deprive defendant of a fair hearing on remand, where the trial court was not obligated to engage in comparative juror analysis (and, indeed, defendant did not request that such analysis be conducted).
Respondent assumes, without conceding, that comparative juror analysis may be conducted even though this is a “first-stage case,” because the prosecutor gave reasons for her challenges. In fact, “[w]hen the trial court expressly states that it does not believe a prima facie case has been made, and then invites the prosecution to justify its challenges for the record on appeal, the question whether a prima facie case has been made is not mooted, nor is a finding of a prima facie showing implied.” (People v. Howard, supra, 42 Cal.4th at p. 1018, citing People v. Welch (1999) 20 Cal.4th 701, 746; People v. Turner (1994) 8 Cal.4th 137, 167; see also People v. Hawthorne, supra, 46 Cal.4th at p. 79, fn. 2; cf. People v. Lenix, supra, 44 Cal.4th at p. 613, fn. 8 [“third stage” case].) Here, the trial court expressly found that no prima facie case was established. Although the court solicited the prosecutor’s reasons for the challenges at the hearing following remand, it again found that a prima facie case had not been established. Defendant argues in his reply brief that “it was doubtless as to stages two and three on which a remand was ordered in” Ivey I. Although this court assumed that the trial court used the incorrect standard for determining whether a prima facie showing was made and concluded that a limited remand was appropriate “to permit the prosecutor to articulate her reasons for excusing the jurors in question and to give the trial court the opportunity to assess the validity of those reasons,” we do not agree that this necessarily converted this into a “stage three” case. The California Supreme Court has “encouraged trial courts to ask prosecutors to give explanations for contested peremptory challenges, even in the absence of a prima facie showing.” (Howard, supra, at p. 1020, italics added.) Where, as here, “a court ultimately concludes that a prima facie showing has not been made, the request for and provision of explanations does not convert a first-stage Wheeler/Batson case into a third-stage case.” (Ibid.; cf. Hernandez v. New York (1991) 500 U.S. 352, 359 [where trial court does not rule on whether defendant made prima facie showing and proceeds to rule on ultimate question of intentional discrimination, question of prima facie showing becomes moot]; People v. Fuentes (1991) 54 Cal.3d 707, 715-716 [implied finding that prima facie case had been made].)
In light of our conclusion, we need not address the parties’ arguments over whether this court’s acknowledgement in Ivey I that the juror questionnaires had been destroyed necessarily established, under the doctrine of law of the case, that there was an adequate record for the trial court to conduct a Wheeler analysis.
Defendant here failed to meet his burden of establishing a prima facie case of group discrimination, that is, that there was sufficient evidence to permit the court to draw an inference that discrimination had occurred. As in People v. Turner, supra, 8 Cal.4th 137, the fact that the jury included a member of a group allegedly discriminated against, while not conclusive, “is an indication of good faith in exercising peremptories, and an appropriate factor for the trial judge to consider in ruling on a Wheeler objection.” (Id. at p. 168 [trial court acted within its discretion in concluding defendant failed to state prima facie case of discrimination].) “Moreover, the prosecutor’s race-neutral reasons for the excusals confirmed the trial court’s finding that there was insufficient evidence to permit the court to draw an inference that discrimination had occurred.” (People v. Hawthorne, supra, 46 Cal.4th at p. 80.)
Defendant notes that the prosecutor relied on responses to juror questionnaires when explaining the challenges, and that without juror questionnaires the prosecutor’s “claims can be neither confirmed nor refuted.” When the jury was being selected, defendant did not claim that the prosecutor was misrepresenting prospective jurors’ statements in the questionnaire, and he had a full and fair opportunity to question prospective jurors on the same responses.
Finally, we note that because no alternate jurors were ever substituted in, any Batson/Wheeler violation as to prospective alternate juror L.R. could not possibly have prejudiced defendant. (People v. Turner, supra, 8 Cal.4th at p. 172.)
III. Disposition
The judgment is affirmed.
We concur: Ruvolo, P.J. Reardon, J.